The Evolution of Marriage and of the Family

by Ch. Letourneau

V. Marriage in Ancient Rome.

In its general features Roman marriage does not greatly differ from Greek, but its evolution has been more complete, and the legislation on the subject is better known to us. Marriages of children, especially of little girls, were the rule at Rome, since the nuptial majority of girls was fixed at twelve years. But they were often betrothed, and even married, before that age. Vipsania Agrippina, daughter of Agrippa and of Pomponia, was promised to Tiberius from her first year.[603] The Digest authorised betrothal at the age of seven.[604]

In betrothing his daughter the father contracted a civil obligation, sanctioned at first by an action for damages, and later by infamy. Every woman of twenty, if she was neither married nor a mother, incurred the punishment decreed by Augustus against celibacy and childlessness.[605] We are indeed told in Roman legislation that the consent of the girl was necessary before passing finally to betrothal and marriage. But it is evident that the consent of a child of twelve years, or even less, was illusory; in reality, the young Roman girl was married by her parents.[606] The young wife was still such a child, that on the day of her wedding she took a ceremonious leave of her playthings and dolls, offering them up to the gods. In reality, it was not the wife who made the engagement, but the persons in whose power she found herself.[607]

Nevertheless, Roman customs conceded to women a certain liberty of manners which the Greeks would not have tolerated. The Roman woman walked in the streets, went to the theatre with the men, shared in banquets, etc.; yet she was, especially in primitive Rome, subjected first to her father and then to her husband. And, besides, public opinion obliged the woman to use in great moderation the practical liberty that was left to her. The famous epitaph of the Roman matron—domum mansit; lanam fecit—is well known. This epitaph may perhaps exaggerate, but it does not lie. Thus Suetonius tells us that the daughters and grand-daughters of Augustus were compelled to weave and spin, and that the Emperor usually wore no other garments but those made by the hands of his wife and sister.[608]

Legally, the Roman wife was the property of her husband, who treated her, not as his equal, but as his child. At Rome, also, conjugal union had been looked at chiefly from the point of view of procreation (Liberorum quærendorum causâ). The wife who was the mother of three children acquired a certain independence; she could make a will even during the lifetime of her husband, and did not need to have recourse to a trustee.[609] But the subjection of woman was very great. The father, invested with the potestas, could sell his child to a third party, in mancipium. The mancipium, which was almost a right of propriety, passed afterwards to the heirs of the owner.

We have seen that the pater familias had the right to marry his daughter without consulting her, but he enjoyed a right more excessive still, that of re-marrying her when his son-in-law had been absent for three years.[610] It was Antoninus only who thought of depriving the father of his right to annul the marriage of his daughter. To the potestas of the father succeeded the manus of the husband. The woman in manu was considered legally as the daughter of her husband, and therefore as the sister of her children. If the husband was himself the son of a family, the wife in manu was held as grand-daughter of the father of the family. This entailed for her the extinction of paternal power (on her own side), and of guardianship and the rights of relationship with the male members of her father’s family. In the marriage with manus the husband became the proprietor of all the dowry of his wife. The father, however, could stipulate that the dowry should be returned to him if his daughter died without children or was repudiated. The leges Julia and Papia had, in fact, imposed on the father the obligation of giving a dowry to his daughter; but the dowry could be appointed by third parties or by the woman herself, if she was sui juris, and then also she had the right to stipulate for some reservations.

This terrible right of manus was acquired by the husband with every form of marriage, even the grossest of all, the usus, or simple cohabitation during one year; but the wife could avoid the conventio in manum by passing three nights in the year out of the conjugal domicile. The manus invested the husband with a large right of correction over his wife, though in very grave cases he was to assemble the family tribunal, which included the children of cousins-german. These family tribunals took cognisance even of murder committed by the wife, and they were still in use under the emperors.[611] On the other hand, the Roman husbands did not let their legal right of beating their wives fall into desuetude, for Saint Monica consoled the wives of her acquaintance whose faces showed marks of marital brutality, by saying to them: “Take care to control your tongues.... It is the duty of servants to obey their masters.... You have made a contract of servitude.”[612]

There were at Rome three kinds of marriages, which I have already named—1st, The usus, resulting from a simple continuous cohabitation, without contract or ceremony, a sort of Tahitian marriage; 2nd, the coemptio or purchase, of which I have spoken at length—that is to say, the legal regulation of the primitive marriage by purchase, in use all over the world at the origin of civilisations. Coemption, without any palliatives, delivered the wife’s body and goods to her husband; 3rd, the confarreatio, or aristocratic marriage, in which the high Pontiff of Jupiter gave, in the presence of ten witnesses, a cake made of flour, water, and salt to the bride and bridegroom, who ate it between them. The manus was conferred on the husband in the marriage by confarreation, the same as in the marriage by usus and coemptio. We must note that at Rome, as in Greece, the religious ceremony was in no way essential to the marriage, which was a laic and civil institution in the first place.[613]

These three forms of marriage very probably represent the evolution of the conjugal union in ancient Rome. The usus, or free cohabitation, must have been the commencement; then came the purchase of the wife, the coemptio, and at length the solemn marriage or confarreatio of the patricians. But marriage with the husband’s right of manus subsisted for a long time, and it conferred on him all the customary licence of savages of every country, notably that of lending the wife, and this exorbitant right endured till the best days of Rome, since the virtuous Cato of Utica used it still in lending his wife Martia to his friend Hortensius.

This fact is curious, and deserves attention. Hortensius began by asking for the loan of Cato’s daughter, Portia, already married to Bibulus, and the mother of two children. It was, says Plutarch, with the object of selection, that he might have a child of good race; he promised to return her afterwards to her husband. On the refusal of Cato, Hortensius fell back on Martia, Cato’s own wife, who was at the time enceinte. Cato was not at all shocked at the proposition, but referred it, however, to Philip, his father-in-law, who also saw no harm in it. A contract was therefore concluded between Cato, Hortensius, and Philip; and Martia, whom no one thought of consulting, was yielded to Hortensius, and afterwards taken back, at the death of the latter, by Cato. She was then the heir of Hortensius, and Cato had not the least scruple in receiving her back with her money at the same time.[614]